Summary: Mr X complained the Council did not properly consider whether to disregard his son’s property when calculating the cost of care. Mr X says his son will not be able to afford to pay for any care costs unless his property is disregarded. We have found the Council at fault for how it made its decision. To remedy the injustice caused the Council agreed to apologise, re-make the decision on whether to include Mr X’s son’s property when calculating care costs, and carry out a service improvement.

The complaint

1. Mr X complains on behalf of Mr Y, his son, that the Council failed to properly consider whether Mr Y’s property should be disregarded when working out his costs for care.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of this investigation I considered the information provided by Mr X and the Council. I discussed the complaint with Mr X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council for comments.

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What I found

Law and guidance

6. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
7. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
8. Part of that assessment includes deciding how much capital a person has. This includes property, investments and savings, excluding the value of a person’s main home. If the Council decides a person has more than the upper capital limit of £23,250 they will be liable for the full cost of their care.
9. Annex B, parts 34 to 44 of the Care and Support Statutory guidance set out how councils should consider disregarding someone’s property. Part 34 outlines the circumstances when a council must disregard someone’s property when assessing the costs they should contribute to their care. Part 42 allows councils to use its discretion to disregard someone’s property in other circumstances. However councils will need to balance this discretion with ensuring a person’s assets are not maintained at public expense.

What happened

10. In September 2023, Mr Y’s mental health worker referred him to the Council for an assessment to establish whether he had care needs.
11. Prior to this Mr Y lived in his family home which he occupied with his partner and children. Mr Y co-owned this property with his partner. Mr Y moved out of this property after a relationship breakdown and was staying with Mr X.
12. In October 2023, Mr X managed to find privately rented accommodation for Mr Y to live at.
13. In early December 2023, the Council carried out a Care Act assessment for Mr Y. This found he had eligible care needs. The Council’s Mental Health Nomination Panel considered Mr Y’s case and agreed to explore a package of care which would keep Mr Y in the community and provide additional housing support.
14. In early January 2024, the Council wrote to Mr Y after looking into his finances and told him he would have to pay for the costs of care. The Council said Mr Y had capital over £23,250 as he owned a share in a property he did not live at. The Council provided details of the standard rates for care and support.
15. In January 2024, Mr X complained to the Council about its decision to include Mr Y’s property in its financial assessment. Mr X asked the Council to disregard this property. Mr X explained who was living at the property and the impact selling this property would have on the whole family.
16. In February 2024, the Council responded to Mr X’s complaint. The Council said there was no provision in the Care Act 2014 to disregard the value of a property where the individual seeking care does not live. The Council said Mr Y would have to pay for any care and support he received.
17. Mr X asked the Council to consider his complaint at the next stage. Mr X explained why Mr Y could not live in the property he jointly owned and the impact of forcing the other family member to leave.
18. In late February 2024, the Council visited Mr Y and Mr X. The Council discussed several options for Mr Y’s care such as supported living, residential placement and home support, however these were refused.
19. The Council provided Mr X with its final response to his complaint. The Council said it would support Mr Y with care services should he want this. The Council said the Care Act 2014 did not allow it to disregard a property while an individual was receiving care and support in the community and was not living in the property they owned. The Council said it must include Mr Y’s property in the financial calculation.
20. Mr X remained dissatisfied and complained to the Ombudsman.

Analysis

21. The Council must assess what Mr Y should pay towards his care. Its assessment of Mr Y’s finances must include his property unless the Council decides to disregard it in one of two ways.
22. Firstly the Council should consider whether any circumstances apply in which the law says Mr Y’s property should be disregarded. In this case none of those circumstances apply.
23. Secondly the Council should then consider whether it will exercise its discretion to disregard Mr X’s property. The Council should consider Mr Y’s individual circumstances and balance this with the need to ensure his assets are not being maintained at the public expense.
24. In this case the Council told Mr X and Mr Y the Care Act 2014 did not allow it to disregard a property while an individual was receiving care and support in the community and was not living in the property they owned. The Council said on this basis it must include Mr Y’s property in his financial assessment. This was fault.
25. The law does allow the Council to disregard Mr Y’s property should it choose to. The Council must consider its discretion to ensure its decision not to disregard the property was properly reached. Mr X made some very specific points about how selling the property would impact the family and Mr Y’s children. Mr Y’s property is also jointly owned so there could be difficulties selling it. I have not seen evidence that the Council considered either of these points.
26. Mr X and Mr Y cannot be sure the Council properly reached its decision on his financial assessment. As a result of this decision and believing he could not afford to pay for care, Mr Y has refused the various care options presented to him by the Council.

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Agreed action

27. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mr Y for not considering its discretion when including his property in his financial assessment for care costs.
• Re-make the decision as to whether it will or will not disregard Mr Y’s property. The Council should ensure can evidence that it considered the points Mr X raised and the individual circumstances of Mr Y’s case.
• Ensure staff carrying out financial assessments are aware the Council can use its discretion to disregard a person’s property.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation and found the Council was at fault and this caused injustice to Mr Y. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman